2018 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this criminal appeal under section 410, Cr.P.C. Ghulam Murtaza appellant has challenged his conviction and sentence awarded by learned Sessions Judge, Rajanpur in case FIR No.142/09 dated 20.05.2009 under sections 302, 365, 148, 149, P.P.C., registered at Police Station Muhammadpur, District Rajanpur, vide judgment dated 03.01.2013, relevant portion of which is reproduced as under:- > Under section 302(b), P.P.C. to undergo imprisonment for life as Ta'zir with direction to pay compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue and in default thereof the appellant shall further undergo 06 months' S.I. The benefit of section 382-B, Cr.P.C. was also extended in his favour.

2. Brief facts of the case as disclosed by Sobha Khan complainant in FIR (Ex.PA/1) are that he was a cultivator and besides cultivation his paternal cousin namely Fida Hussain also dealt with sale and purchase of cattle along with Ghulam Murtaza (appellant). On 19.05.2009 at evening time, the complainant along with his cousin Fida Hussain, his brother Faiz Ullah and Abdul Hameed were present in their house when accused Ghulam Abbas came there and asked them to settle the monetary dispute with accused Ghulam Murtaza so that he might not cause harm to Patafi Bradari as his father Fida Hussain Gadra was a known dacoit and proclaimed offender, whose bounty had already been fixed by the government in lacs. So the complainant along with Fida Hussain (deceased), Faiz Ullah and Abdul Hameed while accompanying accused Ghulam Abbas reached in his house at Chak Shah Wala after Isha prayer and they sat on the cots lying towards south of his house. After sometime, accused Ghulam Murtaza armed with Kalashnikov, Sabir armed with pistol, Ali Buksh Sajjad, Wasaya, Abbas armed with pistol .12 bore and two unknown accused armed with "sotay", who can be identified if came face to face, came there and started conversation. Accused Ghulam Murtaza asked Fida Hussain to pay the amount of Rs.32,000/- due against him, whereas Fida Hussain asked for rendition of accounts. In this way, sufficient time was consumed and when it was midnight accused Murtaza asked Fida Hussain to pay the said amount immediately, but he and his companions showed inability to pay the amount, upon which the accused persons flared up and caught hold of Fida Hussain. They took Fida Hussain to the house of accused Ali Bukhsh. The complainant and the PWs saw in the light of torch from over the southern wall that accused Ghulam Abbas slapped Fida Hussain, while accused Ali Bukhsh raised lalkara not to spare him, upon which accused Ghulam Murtaza made a burst of Kalashnikov which hit Fida Hussain on front side of his body, due to which he fell down and succumbed to the injuries. The remaining accused also made firing. The complainant and the PWs did not go near due to fear of accused persons. Inhabitants of the locality started gathering at the spot whereupon the accused persons fled towards eastern side of Indus River. Motive behind the occurrence was that accused Ghulam Murtaza was repeatedly reminding Fida Hussain deceased that he had to give him Rs.32,000/-, which he did not pay and due to this grudge, the accused persons murdered him in furtherance of their common object.

3. After registration of FIR, investigation of the case was conducted by Riaz Hussain S.I. Shafqat Hussain S.I. and Wazir Ahmad S.I. and after completion of investigation, report under section 173, Cr.P.C. was submitted before the court. At the commencement of trial, learned trial court framed charge against the appellant and his co-accused Fazal Abbas, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as sixteen witnesses before learned trial court. Ocular account was furnished by Sobha Khan complainant (PW-2) and Abdul Hameed (PW-3). Shafqat Hussain S.I. (PW-12), Riaz Hussain S.I. (PW-15) and Wazir Ahmad S.I. (PW-16) testified about the investigation conducted by them and Dr. Sultan Mahmood Asim (PW-11), who conducted postmortem examination on the dead body of the deceased, has furnished medical evidence. The remaining prosecution witnesses, more or less, are formal in nature. After tendering in evidence the report of Chemical Examine (Ex.PM) and the report of Serologist (Ex.PN), the prosecution closed its evidence. After completion of prosecution evidence, statements under section 342, Cr.P.C. of the accused were recorded by learned trial court, wherein they professed innocence and pleaded false implication in this case. They did not opt to get record their statements under section 340(2), Cr.P.C. and did not produce any witness in their defence. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above, whereas his co-accused Fazal Abbas was acquitted of the charge by extending benefit of doubt in his favour. Hence, the instant criminal appeal before this Court.

4. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence, the appellant deserves clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved its case against the appellant beyond any reasonable doubt, so the conviction and sentence of the appellant be maintained and his appeal be dismissed. In addition thereof, learned counsel for the complainant prayed for enhancement of sentence of the appellant.

5. I have heard the learned counsel for the parties and have gone through the record with their able assistance. As per FIR (Ex.PA/1), the occurrence took place during midnight on 20.05.2009 and same was allegedly reported to the police by Sobha Khan complainant (PW-2) by way of recording statement under section 154, Cr.P.C. (Ex.PA) before Riaz Hussain S.I. (PW-15) in the morning at 07:30 a.m. It can, therefore, safely be held that the FIR was lodged with considerable delay, which casted serious doubt regarding presence of Sobha Khan complainant (PW-2) at the spot at the time of occurrence, because, had he been present there at the time of incident, he must have reported the same to the police immediately. An inference can be drawn that the time elapsed between the occurrence and lodging of FIR (Ex.PA/1) had been consumed in manufacturing eye-witness account and fabricating prosecution story after preliminary investigation, therefore, the prosecution evidence has to be seen with utmost care and caution.

6. As regards the eye-witness account, besides himself Sobha Khan complainant (PW-2) has mentioned the names of Faiz Ullah and Abdul Hameed as the persons who allegedly witnessed the occurrence; the former was given up by the prosecution and the latter was produced before learned trial court as PW-3. Although Sobha Khan complainant (PW-2) in his statement before learned trial court has tried to reproduce the story of FIR (Ex.PA/1), but the mode and manner of occurrence disclosed by him itself is quite astonishing. According to Sobha Khan complainant (PW-2), the place of occurrence is situated at a distance of about 18/23 kilometers from his residence and it is quite astonishing that Sobha Khan complainant (PW-2). Abdul Hameed (PW-3), Faiz Ullah (given up) along with Fida Hussain deceased travelled this considerable distance on foot that too during night time. It is yet another astonishing fact that allegedly Sobha Khan complainant (PW-2), Abdul Hameed (PW-3), Faiz Ullah (given up along with Fida Hussain deceased as well as the appellant and his co-accused were present at an open place near the house of Ghulam Abbas accused (since acquitted) from where the accused allegedly dragged Fida Hussain deceased and brought him in the house of Ali Bukhsh accused, but surprisingly enough Sobha Khan complainant (PW-2), Abdul Hameed (PW-3) and Faiz Ullah (given up) did not raise alarm or interrupt the accused so as to rescue their companion/deceased. Apart from the above, Sobha Khan complainant (PW-2), Abdul Hameed (PW-3) were not residing nearby the place of occurrence. They were residing at considerable distance from the place of occurrence and they have not given any plausible explanation for their presence at the spot at the time of occurrence i.e. midnight. In case of "Nadeem Nanha alias Billa Sher v. The State" (2010 SCMR 949), the apex Court, while discussing the evidentiary value of the statements chance witnesses, has observed as below: "The complainant PW4 and Muhammad Afzaal PW5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."

7. According to the prosecution story set forth in FIR (Ex.PA/1) the occurrence in this case has taken place during night and Sobha Khan complainant (PW-2) and Abdul Hameed (PW-3) claimed to have seen the occurrence in the light of torch, but this fact also does not appeal to mind as if Sobha Khan complainant (PW-2) and Abdul Hameed (PW-3) along with Faiz Ullah (given up) were watching the appellant and his co-accused in the light of torch when the appellant allegedly fired burst of Kalashnikov on the deceased, then what was the circumstance that none of the accused took notice of their presence at the spot and had not fired even a single shot towards them. The story narrated by the complainant in FIR (Ex.PA/1) itself shows that the occurrence has not taken place in the manner as narrated therein because during night if a person holds torch in his hand he can be noticed easily from a long distance, therefore, it is not believable that appellant along with co-accused would commit the murder of deceased at the time when somebody was watching them with torch light. Even otherwise during investigation of this case torch has not been taken into possession to prove this specific aspect of prosecution case. In such like situation the Hon'ble Supreme Court in the case of "Nazeer Ahmad v. Gehne Khan and others" (2011 SCMR 1473) has held as under:- "Having heard learned counsel for the petitioner at some length, we find that in disbelieving the prosecution evidence, learned High Court was persuaded by the fact that there was an unexplained delay of seven hours in lodging the FIR; that the two eye-witnesses resided at the distance of six/seven acres from the place of occurrence; that the respondents were declared innocent during investigation; that it was a night occurrence and the source of light was allegedly a torch which was never taken into possession and that there was a delay even in having postmortem conducted, which adversely reflected on the credibility of the prosecution version." Reliance in this regard can also be placed on the case of "Basar v. Zulfiqar Ali and others" (2010 SCMR 1972). I have also observed that the injury statement (Ex.PJ) and the inquest report (Ex.PKJ/1) which obviously are prepared by the investigating officer after registration of case do not contain the details of FIR (Ex.PA/1) and even Dr. Sultan Mahmood Asim (PW-11) who conducted post-mortem examination on the dead body of the deceased has not mentioned time of postmortem examination in postmortem report (Ex.PH) as well as in his statement before learned trial court, however, he has opined that probable duration between the death and postmortem examination was 12 to 16 hours. Like-wise, the eye-witnesses only stated that the occurrence took place during midnight, but they could not tell exact time of the occurrence in FIR, statements under section 161, Cr.P.C. and statements before learned trial court as PW-2 and PW-3, which fact raises serious doubt about their presence at the spot at the time of occurrence. Keeping in mind the above discussion, I am of the definite view that Sobha Khan complainant (PW-2) and Abdul Hameed (PW-3) were not present at the spot at the time of occurrence, therefore, I am not inclined to believe them as trustworthy or confidence inspiring witnesses.

8. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103). In the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance.

9. As far as the recovery of alleged weapon of offence is concerned a Kalashnikov (P4) along with 20 live bullets (P5/1-20) is shown to have been recovered from the appellant vide memo (Ex.PE). Admittedly no report of the Forensic Science Laboratory has been tendered in evidence by the prosecution so as to ascertain that the weapon recovered from the appellant was the same with which the deceased was done to death and in this situation, the recovery of weapon i.e. Kalashnikov (P4) is inconsequential and cannot be used against the appellant.

10. The motive as alleged by the prosecution was a monetary dispute between the appellant and the deceased, who owed an amount of Rs.32,000/- on account of joint venture of selling and purchase of cattle. I have observed that the prosecution not only failed to produce any independent witness to prove joint business of the appellant and the deceased but has also failed to establish the alleged monetary dispute. Even if it is presumed that there was monetary dispute between the appellant and the deceased, it must have been the appellant to have proceeded to the house of deceased to fetch his money but in this case the dead body of the deceased was recovered from the house of Ali Bukhsh co-accused, who is still proclaimed offender and according to the defence version, the deceased had established illicit relations with the wife of said Ali Bukhsh co-accused namely Nazeeran Mai. It is, therefore, held that the motive is implausible and could not be proved by the prosecution.

11. Apart from above, co-accused of the appellants namely Sabir, Ghulam Abbas, Fazal Abbas and Attu have already been acquitted by learned trial court on the basis of same set of witnesses and the judgments of learned trial court to the extent of their acquittal have attained finality. In the circumstances when the evidence to the extent of acquitted co-accused has already been disbelieved by learned trial court, it cannot be believed against the appellant until and unless the same is supported by some strong independent corroborative piece of evidence which is very much lacking in this case as I have not found any such evidence on the record. Reliance can be placed on the case reported as "Ghulam Sikandar and another v. Mamraz Khan and others" (PLD 1985 SC 11), wherein the apex Court of the country has been pleased to hold as under: "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently, namely, that the testimony of an eye -witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (1) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused......." The Hon'ble Supreme Court of Pakistan, in case of "Iftikhar Hussain v. The State" (2004 SCMR 1185) has held as under:- ".......It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the Superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758).....". In case of "Akhtar Ali and others v. The State" (2008 SCMR 6) at page 12 of the judgment, the following principles have been highlighted by the learned apex Court: "............It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case (PLD 1975 SC 588), Sheral alias Sher Muhammad's case (1999 SCMR 697) and Ata Muhammad's case (1995 SCMR 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case (PLD 1959 PC 24), Nadia's case (42 Cr.LJ 53) Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCMR 651) and Muhammad Afsar's case (PLD 1954 FC 171). It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case (PLD 1963 Kar. 805)...." To fortify the above view, guidance has also been sought from the case of "Ghulam Mustafa and another v. State" (2009 SCMR 916), wherein, Hon'ble Supreme Court of Pakistan, has held as under: "..... In our jurisdiction it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses then indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v. State (PLD 2002 SC 52).......".

12. The above minute scrutiny of the record and evidence clearly depicts that the prosecution case against the appellant is of doubtful nature and his conviction and sentence on the basis of such type of shaky and untrustworthy evidence cannot be maintained. It is settled law that not many circumstances creating doubt in the prosecution story are required but only a single circumstance creating doubt in the prosecution story is enough to acquit the accused. Reliance can be placed on the case of "Tariq Pervez v. The State" (1995 SCMR 1345), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "5. ..... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." The case in hand is replete with number of circumstances which have created serious doubt about the prosecution story. It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace, but of right. In "Ayub Masih v. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned apex Court of our country has been pleased to observe as under:- "....... It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram v. The State" (2009 SCMR 230) observed as under:- "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".

13. The upshot of above discussion is that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt. This appeal is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He is present in Court on bail, his surety stands discharged from the liability of surety bonds. JK/G-14/L Appeal allowed.